Jonassen et al v. United States of America
Filing
236
OPINION AND ORDER LIFTING STAY, Case reopened. Clerk is DIRECTED to docket what is currently entry 234 , at pages 2 through 13, separately, as Plaintiffs response to the motion for summary judgment. Defendants 144 motion for summary judgment is GRANTED. The Clerk is DIRECTED to enter FINAL JUDGMENT in favor of Defendant, Warden Joseph Widup, and against Plaintiff, Martin J. Jonassen. Signed by Judge Joseph S Van Bokkelen on 11/21/13. cc: Jonassen(mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MARTIN J. JONASSEN,
Plaintiff,
Civil Action No. 2:12-CV-97-JVB
v.
JOSEPH WIDDUP,
Defendant.
OPINION AND ORDER
Martin J. Jonassen, a prisoner, is proceeding pro se solely on a claim for damages against
Warden Joseph Widup for failing to protect him from an attack at the Porter County Jail by
Jeremiah Tautges, a fellow inmate, on October 29, 2011. Warden Widup filed a motion for
summary judgment arguing that he had no personal involvement in this incident and that he had
no knowledge that Jonassen was at risk of being attacked. Jonassen was allotted a generous
amount of time to prepare his response and this case was stayed and closed for statistical
purposes so that he could do so without seeking additional enlargements of time. On September
12, 2013, Jonassen filed a motion asking to lift the stay with what was captioned a “Preliminary
Response.” (DE 230.) In denying the motion, the Court explained that “it does not appear that
Jonassen understands that he only gets one response. If he has more to say, he needs to say it
now. Because of this confusion, this case will remain stayed and Jonassen will be afforded
additional time to file his final, complete response to the summary judgment motion.” (DE 231.)
Jonassen has now filed a notice explaining that the inclusion of the word “preliminary” in the
caption of his response to the Motion for Summary Judgment was a mistake. He has now
attached a copy with the word “preliminary” scribbled out. (DE 234 at 2–13.) The Court accepts
this as an assertion that this filing is his final, complete response to the summary-judgment
motion. Therefore the Court will reopen this case, lift the stay, and rule on the summaryjudgment motion.
DISCUSSION
Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” The party seeking summary judgment “bears the initial
responsibility of informing the district court of the basis for its motion, and identifying” the
evidence which “demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). “Substantive law determines which facts are material; that
is, which facts might affect the outcome of the suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by “citing to particular parts of materials in the
record” or show “that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R.
Civ. P. 56(c)(1). To establish a genuine issue of fact, the nonmoving party must come forward
with specific facts showing that there is a genuine issue for trial, not “simply show that there is
some metaphysical doubt as to the material facts.” First Nat’l Bank of Cicero v. Lewco Secs.
Corp., 860 F.2d 1407, 1411 (7th Cir. 1988) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986)). Summary judgment “is the put up or shut up moment in
a lawsuit, when a party must show what evidence it has that would convince a trier of fact to
accept its version of the events.” Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008)
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(citations and quotation marks omitted). If the nonmoving party fails to establish the existence of
an essential element on which it bears the burden of proof at trial, summary judgment is proper.
Celotex, 477 U.S. at 322–23 (explaining that a failure to prove one essential element necessarily
renders all other facts immaterial).
In ruling on a motion for summary judgment, the court must view all facts in the light
most favorable to the nonmoving party. Anderson, 477 U.S. at 255. The court will not “make
credibility determinations, weigh the evidence, or decide which inferences to draw from the
facts; these are jobs for a factfinder.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).
Summary judgment is not a substitute for a trial on the merits or a vehicle for resolving factual
disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). Instead, the sole
task in ruling on a motion for summary judgment is “to decide, based on the evidence of record,
whether there is any material dispute of fact that requires a trial.” Payne, 337 F.3d at 770. If a
reasonable factfinder could find in favor of the nonmoving party, summary judgment may not be
granted. Id.
Jonassen alleges that Warden Joseph Widup failed to protect him from an attack at the
Porter County Jail by Jeremiah Tautges, a fellow inmate, on October 29, 2011. When an inmate
is attacked by another inmate, the constitution is violated only if “deliberate indifference by
prison officials effectively condones the attack by allowing it to happen . . . .” Haley v. Gross, 86
F.3d 630, 640 (7th Cir. 1996). The defendant “must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
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Attached to the summary-judgment motion is the affidavit of Warden Widup in which he
affirms that he “was not present for this incident and prior to this October 28, 2011 incident, I
had not been informed of any known requests or complaints by Plaintiff of any concerns he or
anyone else had for his safety.” (DE 145-1 at 12, ¶ 22.) In response, Jonassen argues that
Warden Widup “is responsible for classification, policy/people under his authority.” (DE 234 at
5.) However, there is no general respondeat superior liability under 42 U.S.C. § 1983. “[P]ublic
employees are responsible for their own misdeeds but not for anyone else’s.” Burks v. Raemisch,
555 F.3d 592, 596 (7th Cir. 2009). He argues that Warden Widup, “knew Tautges had violence
problems . . . .” (DE 234 at 6.) Jonassen provides no evidence to support this assertion and mere
“speculation or conjecture will not defeat a summary judgment motion.” Johnson v. Doughty,
433 F.3d 1001, 1012 (7th Cir. 2006) (quoting McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001
(7th Cir. 2004)). Nevertheless, even if Warden Widup did know that Tautges had been violent in
the past, “[p]risons are dangerous places. Housing the most aggressive among us, they place
violent people in close quarters.” McGill v. Duckworth, 944 F.2d 344, 345 (7th Cir. 1991).
Some level of brutality and sexual aggression among [prisoners] is inevitable no
matter what the guards do. Worse: because violence is inevitable unless all prisoners
are locked in their cells 24 hours a day and sedated (a “solution” posing
constitutional problems of its own) it will always be possible to say that the guards
“should have known” of the risk. Indeed they should, and do. Applied to a prison, the
objective “should have known” formula of tort law approaches absolute liability,
rather a long distance from the Supreme Court’s standards in Estelle and its
offspring.
McGill v. Duckworth, 944 F.2d 344, 348 (7th Cir. 1991), overruled on other grounds by Farmer,
511 U.S. 825. This is why general requests for help, expressions of fear, and even prior attacks
are insufficient to alert guards to the need for action. Klebanowski v. Sheahan, 540 F.3d 633,
639–40 (7th Cir. 2008).
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Klebanowski testified during his deposition that he told officers twice on September
8 that he was afraid for his life and he wanted to be transferred off the tier. Those
statements, and the officers’ knowledge of the first beating, are the only pieces of
evidence in the record that can assist Klebanowski in his attempt to show that the
officers were aware of any risk to him. We have previously held that statements like
those made by Klebanowski are insufficient to alert officers to a specific threat. In
Butera, we deemed the inmate’s statements insufficient to give notice to the officers
because they did not provide the identities of those who threatened the inmate, nor
state what the threats were.
The facts of this case make clear our reason for requiring more than general
allegations of fear or the need to be removed. By Klebanowski’s own testimony, the
officers knew only that he had been involved in an altercation with three other
inmates, and that he wanted a transfer because he feared for his life. He did not tell
them that he had actually been threatened with future violence, nor that the attack on
September 8 was inflicted by gang members because of his non-gang status. Without
these additional facts to rely on, there was nothing leading the officers to believe that
Klebanowski himself was not speculating regarding the threat he faced out of fear
based on the first attack he suffered. This lack of specificity falls below the required
notice an officer must have for liability to attach for deliberate indifference.
Id. (footnote and citations omitted). So too in this case. Thus, even if Warden Widup had known
that Tautges had been violent in the past—which has not been demonstrated here—that would be
insufficient to defeat this summary-judgment motion. Jonassen states that after the attack he was
placed back in a cell with Tautges (DE 234 at 6), but this is immaterial since he has provided no
evidence that Warden Widup was involved in that placement and no evidence of a second attack.
See Doe v. Welborn, 110 F.3d 520, 523–24 (7th Cir. 1997) (fear of an attack that never occurs
fails to state a claim.)
In his response, Jonassen states that he includes by reference “DE’s 105, 106, 107, 119,
Etc.” (DE 234 at 2.) In entry 105, he submitted copies of several Porter County Jail medical
requests, a request for copies, and a remittance slip from the Kankakee County Jail showing
partial payment of a filing fee for another case. Entry 106 was stricken, but the Court has
reviewed it anyway to see whether it contains any evidence which could be relevant to the
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resolution of this summary-judgment motion. In entry 106, Jonassen discusses numerous other
problems that he has had while incarcerated in addition to listing citations to cases analyzing
failure to protect claims. What entry 106 does not do is provide any evidence that Warden Widup
was personally involved in any way or that he was deliberately indifferent to a substantial risk of
serious harm. In entry 107, Jonassen submitted copies of Kankakee County Jail grievances and
medical requests. In entry 119, Jonassen discusses his medical records and explains that the case
should not be dismissed for failure to exhaust administrative remedies pursuant to 42 U.S.C.
§ 1997e(a). None of these filings provides any evidence which could defeat this summaryjudgment motion.
In addition to the four filings specifically cited by Jonassen in his response to the motion
for summary judgement, the court has also reviewed his other filings in this case, including five
that he has labeled as a declaration or affidavit. In entry 120, Brandon Clay, a fellow inmate
housed with Jonassen at the Chicago MCC, declares that Jonassen was assigned a top bunk from
which he fell and was injured. DE 120 also contains three Kankakee County Jail
grievance/medical request forms and an administrative detention order from the Chicago
Metropolitan Correctional Center (“MCC”). In entry 127, Riley Carnahan and Mark Rieke,
fellow inmates housed with Jonassen at the Chicago MCC, declare that there is contaminated air
in the jail and that Jonassen’s papers were destroyed by raw sewage. In entry 137, Jonathan
Williams-Culver, a fellow inmate housed with Jonassen at the Chicago MCC, declares that
guards stole Jonassen’s Indian religious headband on April 8, 2013. In entry 138, Joshua
Whitaker, a fellow inmate housed with Jonassen at the Chicago MCC, declares that Jonassen
was injured after he fell from a top bunk. In entry 127, which was stricken, Michael
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McCullough, a fellow inmate housed with Jonassen at United States Penitentiary Tucson, signed
an affidavit pursuant to 28 U.S.C. § 1746 stating that he assaulted Jonassen on July 7, 2013, due
to overcrowding and poor ventilation. None of these documents have any relevance to this case.
None presents evidence to indicate that Warden Widup was in any way involved in, or was
deliberately indifferent to the risk of, the attack on Jonassen at the Porter County Jail by
Jeremiah Tautges on October 29, 2011.
Finally, in his response to the motion for summary judgement, Jonassen asks the Court to
enter a scheduling order for further discovery. What he does not do is say that he has had an
insufficient opportunity to conduct the discovery necessary to respond to this summary
judgement motion. See Fed. R. Civ. P. 56(d). Rather, he states that “[t]here is a sufficient amount
of evidence to show a genuine dispute upon which a reasonable jury would rule for Plaintiff.”
(DE 234 at 3.) And he says that the defendant’s failure to demonstrate the absence of a factual
dispute, “mandat[es] need for depositions, discovery, interrogatories, scheduling order/for
establishing facts, etc.” (Id. at 7.) In addition, in docket entry 119, he argued that he needed
additional discovery to demonstrate that he had exhausted his administrative remedies as
required by 42 U.S.C. § 1997e(a). Jonassen had many months during which he could have
conducted discovery. Nothing in these fleeting references to additional discovery gives any
indication that he wants discovery to obtain evidence to rebut this summary-judgment motion –
much less what that discovery would entail. Rather, given how much time he has spent in his
filings discussing claims that are not a part of this lawsuit, which arose in other places after he
was transferred out of the Porter County Jail, it appears that he is really interested in conducting
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discovery about those issues and not this one. This is no basis for additional discovery under
Rule 56(d)(2).
CONCLUSION
For the foregoing reasons, the case is REOPENED and the STAY is lifted. The Clerk is
DIRECTED to docket what is currently entry 234, at pages 2 through 13, separately, as
Plaintiff’s response to the motion for summary judgment. Defendant’s motion for summary
judgment (DE 144) is GRANTED. The Clerk is DIRECTED to enter FINAL JUDGMENT in
favor of Defendant, Warden Joseph Widup, and against Plaintiff, Martin J. Jonassen
SO ORDERED on November 21, 2013.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE
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